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John Jay 




John Jay 



The Earthly 

Pilgrimage 

— OF— 

John Jay 



-BY 



John Henry Zuvcr 



A TOME OF THE EARTHLY 
PILGRIMAGES OF THE CHIEF 
JUSTICES OF THE UNITED 
STATES SUPREME COURT. 
THE ASSOCIATED LAWYERS' 
PUBLISHING COMPANY, BAT^ 
TLE CREEK, MICHIGAN, MCMIV 






LiEHAHY of OOWQRrss 
Two Copies Rece';vert 

JUN 27 190^- 

Copyrjf ht fcntr? 

CLJASS 0^ xxc. ^<c 

^\^ ^ 

COPY 8 



^ 



/i/' 



V 



COPYRIGHT 1904. BY 
THt ASSOCIATED LAWYERS' PUBLISHING COMPANY 



®f John 5a^. 




IHE INK which marked President 
Washington's approval of the 
Federal Judiciary Act of 1789 
was scarcely dry, when that func- 
tionary sent to the United States 
vg^ii Senate the following names: For 
l^^^fj Chief Justice, John Jay; for Asso- 
ciate Justices, John Rutledge, James V/ilson, Wil- 
liam Gushing, Robert H. Harrison, and John Blair. 
At the same time the nam.e of Edmund Randolph 
was proposed for Attorney General. Two days 
lajter, on Septem.ber 26, the entire slate was con- 
firmed, and John Jay was assigned the page in 
history devoted to the first Chief Justice of the 
United States Suprem^e Court. 

At that time he was forty-four years of age, 
and well known throughout the New Republic as 
a good citizen, a loyal patriot, an able lawyer, an 
honest politician, a far-seeing statesman, and a 
skillful diplomat. The opportunity was here af- 
forded him to demonstrate his qualifications as a 
jurist. 

He embraced the opportunity, history tells us, 
even in advance of his appointment, having been 
tendered by Washington his choice of the Federal 
offices, because of the high regard in which the 



2 EARTHLYPILGRIMAGE 

first President held him. He chose the Chief Jus- 
ticeship, and it was given him, because neither the 
President nor the Senate feared that he would 
" hesitate a moment to bring into action the tal- 
ents, the knowledge, and integrity which were so 
necessary to be exercised at the head of that de- 
partment, Vv'^hich must be considered as the key- 
stone of our political fabric/' 




OHN JAY entered this life at the city of 
New York, on the twelfth day of Decem- 
ber, Anno Domini, one thousand seven 
hundred and forty-five. The first thing 
he did was to start for the grave, a direction in 
which he traveled throughout his earthly pilgrim- 
age, which endured for eighty-three years, five 
months, and five days. Then that peaceful retreat 
was opened to receive him at Bedford, in York 
State, — forty miles distant from the point of his 
birth, — where he was delivered into its bosom from 
an attack of palsy, on May 17, 1829. 

Between the hour of his birth and the hour of 
his death were transacted those deeds of life which 
made John Jay famous, — save, perhaps, the influ- 
ence of heredity and the accretions of history. He 
was the youngest of a family of eight children, 
and the sixth son. Peter Jay was his father, and 
Mary Jay his m.other. The father was of French 
descent, and the mother was of Dutch extraction. 
The father was wealthy, and the mother was rich. 
The father inherited v/ell from the grandfather, 
Augustus Jay, and by thrift and industry increased 
the inheritance greatly. The mother was the 



OF JOHN JAY 3 

daughter of Jacobus Van Cortlandt, of manorial 
prominence, from whom, through her, the first 
Chief Justice inherited the estate of his retire- 
ment, where he spent his declining years — after 
a long and valuable public service. 

Peter and Mary intended John for the law from 
the start, and he was doubtless given the best pre- 
paratory education that the times and location af- 
forded. For though the older Jay dealt in beer 
and rum, as well as in kerseys, mohairs, hats, 
gloves, and sugar and hams, he was reputed as a 
" gentleman of opulence and character," a zealous 
churchman, and advocate of schools and wider 
knowledge. Thus we have it that, after surviving 
an attack of sore throat, of which a younger sister 
died, and escaping a dreaded smallpox, which left 
his brother, Peter, Jr., and his sister, Nancy, blind, 
he was taught by his mother the "rudiments of 
English, and the Latin Grammar." Johnny had 
a grave disposition, and took to learning exceed- 
ingly well, so saith his father's diary, on his en- 
tering the gram^mar school at New Rochelle, at the 
age of eight. 

French was usually spoken throughout New 
Rochelle, which, as the name suggests, was peopled 
chiefly by descendants of French refugees, and thus 
the young Jay learned early and easily the lan- 
guage which was to prove so useful to him during 
his then unanticipated career as a diplomat. 

For three years Johnny remained at the gram- 
mar school, which was conducted by the Rev. Mr. 
Stoope, and was then taken home, and there pre- 
pared for college by a private tutor, Mr. George 
Murray. He entered King's (now Columbia) Col- 



4 EARTHLYPILGRIMAGE 

lege at the age of fourteen, having passed an ex- 
amination that would do credit to many of that 
institution's modern graduates. 

For admission he was required to read three of 
TuUey's orations, and six books of Virgil into Eng- 
lish, and the first ten chapters of St. John's Gospel 
into Latin. A candidate for college who can do 
that successfully nowadays is considered a prodigy, 
and the graduate who can do it, a fit candidate for 
a lunatic asylum. But Jay found this knowledge 
useful, indeed indispensable in his career. There 
are such exceptions to the rule of to-day. 




F Jay's college life but little is known. At 
that time the institution was under its 
first president, the learned and pious Dr. 
Samuel Johnson, who had been one of the 
first graduates of Yale College to desert Congre- 
gationalism for the English Church. Single-handed 
at the outstart, and then with a pair of assistants. 
Dr. Johnson set King's College agoing, and was 
just gaining some success, when our subject was 
enrolled; and v/e have it from the college presi- 
dent's own pen, that " he set himself at once, and 
of his own accord, to curing certain defects of utter- 
ance and rapid reading, making an enthusiastic 
study of English composition," which no doubt 
bore fruit in the graceful and easy, and ofttimes 
laconic style for which he was noted, and which 
in the first Continental Congress at once placed 
him in " the little aristocracy of talents and letters." 



OF JOHN JAY 5 

But in 1763 the old doctor resigned, through 
fear of smallpox, which had taken away his wife, 
was an epidemic in New York, and of which he 
was sore afraid; and he was succeeded as presi- 
dent by Dr. Mayles Cooper, " a wit and scholar," 
says Gulian Vanplank, " whose learning and accom- 
plishments gave him personal popularity, and of 
course added authority to his opinions, which were 
the opinions and prejudices of the high-toned Eng- 
lish University Tory of the Eighteenth Century." 
Under the tuition of Dr. Cooper, John Jay finished 
his college course. He v/as already in his senior 
year, and an incident that occurred shortly after 
the new president was installed will throw some 
light on how well Jay was by nature adapted to 
the course in life which he later chose to pursue. 

One day a number of students in the College 
Hall began to break a table, — a typical senior trick. 
The doctor heard the noise, went in, and asked 
one student after another, " Did you break the 
table? " " Do you know who did? " All answered, 
" No," until John Jay was asked, and he was the 
last but one. To the first question Jay answered 
the same as the others, but to the second inquiry, 
his answer was, " Yes, sir." " Who was it? " asked 
the doctor. " I do not choose to tell," was the 
sturdy reply of the future Chief Justice, and the 
next and last boy of the class answered in the 
same manner. These two were then called before 
the faculty, where Jay argued his first case. Ad- 
mitting all the facts, he contended ingeniously and 
reasonably enough that, " as information against 
fellow students was not required by the college 
statutes, they were not technically guilty of dis- 



6 EARTHLYPILGRIMAGE 

obedience in not informing; that such information 
was not customary with students, and in the ab- 
sence of statute making it mandatory, there could 
be no offense." He admitted ignorantia legis non 
excusat, but in this case there was neither legis 
scriptae nor legis non scriptae on which a knowl- 
edge could be based. " Our fellow students," he 
said, " who answered * no ' to both questions are 
within the maxim Ignorantia Facit Excusat, it is 
true. Are we to be punished for entertaining a 
secret, and holding it sacred, which neither the cus- 
tom of students nor the college statutes forbid? " 
But the professors, who thought themselves the 
injured parties, were also the judges, and were 
not to be convinced by any such ingenuity, hence 
Jay and his fellow criminal were rusticated only a 
short time before they were to graduate. 

It appears, however, from the college records 
that Jay must have continued his studies at home, 
for his suspension over, he was enabled to return 
in time to pass an exceptional examination, and at 
the commencement held May 17, 1764, sixty-five 
years previous to the date of his death, he delivered 
a dissertation on " The Blessings of Peace," and re- 
ceived his bachelor's degree. 

Twelve years later, at the outbreak of the Revo- 
lution, Dr. Mayles Cooper, the " wit and scholar," 
whose " opinions and prejudices " were of the 
"high-toned English University Tory," was forced 
to leap over the college fence to escape a mob of 
" Liberty Boys," eager for American independence, 
and determined to repeal the " authority " of " his 
opinions " by hurrying him away to the England 
that enjoyed his sympathies, and thus ended his 



OF JOHN JAY 



college presidency in a manner but little befitting a 
poet and Fellow of Oxford. 




BOUT that time the bar of the city of New 
York had a severe attack of supercilious 
fear that there was to be a great influx of 
applicants for admission, and to avoid it, 
the then practising lawyers agreed upon a resolu- 
tion " to take no one as clerk who proposed to 
enter the profession." Accordingly Jay began to 
make preparations to start for England to get a 
professional education there, but an amendment 
to the aforesaid resolution was finally acceded to 
by the lawyers, in the proviso, that " no one shall 
be employed as clerk who proposes to enter the 
profession, except under such restrictions as will 
greatly impede the lower class of people from 
creeping in." 

This was a happy ending of much anxiety for 
Mr. Peter Jay, and John at once entered the office 
of Benjamin Kissam, a barrister " eminent in the 
profession," by binding himself as an apprentice 
on the payment of £200, to serve for five years, 
" with the liberty to apply the last two years to 
the study of law, and to visit the sessions, with 
only occasional attendance at the office." 

Printed blank forms, typewriting machines, 
stenographers, and such modern conveniences, 
were not known in the law offices of those days, 
and Jay's duties as a clerk were immensely labori- 
ous. Everything was written, and the drudgery 
of copying was oppressive. Even the argument 



g BARTHLYPILGRIMAGE 

of questions of law before the Supreme Court was 
conducted in writing, in longhand, a system which, 
with all its bunglesomeness, nevertheless had its 
advantages for the law student, for what a man 
has to write down and copy, he usually remem- 
bers. The hand thus feeds the mind as well as 
the body. 

The must of the Revolution was already fer- 
m.enting, but at that tim.e more as a matter of pol- 
itics than of patriotism, both being apparently ig- 
nored by the lawyer and the student, except in so 
far as concerned their legal business. Thus, in 
April, 1766, Mr. Kissam proposed a "jaunt" to 
Philadelphia, if the news of the repeal of the Stamp 
Act did not arrive meantime ; for, as he wrote, " On 
the repeal of the Stamp Act we shall doubtless have 
a luxuriant harvest of law, and I would not, after 
the long famine v/e have had, willingly miss reap- 
ing my share of the harvest." 

But the Stamp Act v/as not thus repealed, and 
Kissam while absent wrote to inquire about the 
conduct of his office, to which Jay characteristic- 
ally replied, as he expressed it, " Free enough, in 
all conscience." "A man's own evidence is not of 
much account in his own defense, I beg to remind 
you," he wrote his master, " hence if you mean to 
ask me how your clerk is acting, I know hardly 
how to answer. If I tell you I am all day in the 
office, and as attentive to your interests as I would 
be to my ov/n, I suspect you would think it such 
an impeachment of m.y m.odesty as would not op- 
erate very powerfully in favor of my veracity. On 
the other hand, should I say to you that I am 
making hay while the sun shines, and say to my 



OP JOHN JAY 9 

soul, * Soul, take thy rest, thy lord is journeying 
in a far country,* I should be much mistaken if 
you did not think the confession looked too honest 
to be true." 

As this correspondence would indicate, Mr. 
Kissam, the eminent barrister, and Mr. Jay, though 
but twenty-one and only a clerk, were on terms 
of intimacy, such as permitted an occasional diver- 
sion to merriment. It was about this time, too, 
that the future peace envoy of the American Revo- 
lution, John Jay, by a diplomatic, though not in- 
sincere reply, got his father's leave to keep a horse. 

" John, what do you want of a horse ? " asked 
his father. " That I m.ay have the means, sir, of 
visiting you frequently," was the diplomatic reply, 
and John, whom his father loved dearly, was soon 
sporting a fine horse — at his father's expense. 

John Jay was admitted to the bar in 1768, and 
became almost immediately successful. At first, 
a temporary partnership was formed with Robert 
R. Livingston, under the firm name of Livingston 
& Jay, barristers, advocates, etc. Benjamin Kis- 
sam, when unable to attend to his own business, 
would often ask Jay to act for him, and a letter 
of his shows the nature of the cases : " One is about 
a horse race, in which I suppose there is some 
cheat; another is about an eloped wife; another 
appertains to horse flesh gone astray, and there is 
also one writ of inquiry." 

The practise of the country lawyer then, as 
now, and the city of New York then was not as 
large as the Greater Nev/ York of to-day, consisted 
chiefly in making collections, settling line fence 
disputes, suing out writs of ejectment, — especially 



10 EARTHLYPILGRIMAGE 

for the young attorney whose practise was limited 
at the best. Only one cause of any consequence 
is mentioned in which Jay was engaged, namely, a 
contested election in Westchester County, in which 
the right of suffrage was discussed, and questions 
of evidence of more than usual intricacy arose. On 
this occasion Jay was opposed by his friend, Gou- 
verneur Morris, and Jay v/on. In 1770, Jay speaks 
of going to Fairfield, to try two cases, and in 1774 
he addressed a jury at Albany. His practise then 
was quite varied, though he was engaged in no 
great cases, like that of Zenger, involving prin- 
ciples of constitutional law, and establishing the 
reputation of victorious counsel, and he was at no 
time noted for brilliant or " magnetic " oratory. 
"All the causes you have hitherto tried," v/rote 
Kissam about that time, " have been a kind of in- 
spiration," which shows that they still remained 
close friends, though sometimes engaged on oppo- 
site sides. On one such occasion, Kissam, in a mo- 
ment of embarrassment, complained that he had 
brought up a bird to pick out his own eyes. " Oh, 
no," was Jay's retort, " not to pick out, but to open 
your eyes." 

Instead of New York being the financial center 
of the Western Hemisphere in those early times, 
it was the home of the " Moot Court," an idea orig- 
inated by John Jay in November, 1770, and now 
in vogue in practically all the law schools of the 
country. This club met the first Friday of every 
month for the discussion of disputed points of law 
— but party politics were strictly forbidden. Un- 
like the modern Law School Moot Court, however, 
this club was composed of lawyers, and its deci- 



OFJOHNJAY 11 

sions on matters of practise are said to have been 
followed by the Superior Court in its sessions. 
Among its members we note the name of John 
Jay, first Chief Justice of the United States Su- 
preme Court; Egbert Benson, Jay's college friend 
who with him said "yes," but wouldn't tell, and 
who in due time became Judge of the New York 
Supreme Court; Robert R. Livingston, Jr., son of 
Jay's law partner; James Daune, Jay's colleague 
in the Continental Congress, and first Mayor of 
New York after the Revolution ; Peter Van Schaack, 
whom Jay, as chairman of the Council of Safety, 
was later to exile from the State for being a Tory, 
but who loved him to the end, and wrote a glowing 
epitaph upon him; and Gouverneur Morris, not yet 
possessed of that v/ooden leg which he later bran- 
dished with such patriotic effect in the face of a 
Paris mob; while among the older lawyers who 
attended now and then were William Smith, who 
later became Chief Justice of Canada, after having 
been confined at Livingston Manor by Jay's com- 
mittee, and banished as a Tory sympathizer; Sam- 
uel Jones, not the preacher, but the Chief Jus- 
tice whose office was to be the training school of 
De Witt Clinton; John Morin Scott, the popular 
orator of the " Liberty Boys ; " and then, there v/as 
Benjamin Kissam, Jay's tutor, and W^illiam Liv- 
ingston, his future father-in-law, the future Revo- 
lutionary Governor of New Jersey, and already 
well known for countless literary and political 
poems, essays, and letters. 

On April 28, 1774, at patriotically named " Lib- 
erty Hall," in Elizabeth, New Jersey, John Jay 
was united in holy wedlock to the " beautiful Sarah 



12 EARTHLY PILGRIMAGE 

Livingston," youngest daughter of William Liv- 
ingston, and in the notices of the wedding. Jay, 
young as he was, was described as an " eminent 
barrister," much after the fashion of the press of 
to-day, which refers to the newly married young 
lawyer as " a rising young attorney." 

And thus endeth the first third of Jay*s life, 
which naturally was divided into three thirds; but 
curiously, the second third — of twenty-eight years 
— was devoted almost wholly to public service, and 
the last third was spent in retirement. His day 
as a lawyer in practise is now quite done, the tide 
of the times having drawn him into the vortex of 
politics. 




[HE average human head, like an egg — 
or a crock of baughnaughclaughber — ab- 
sorbs the flavor of its surroundings, and 
up to the beginning of Jay's public life 
there seems but little to indicate that his head was 
very far above the average. Thus we have it that 
" John Jay was a Whig." By family traditions he 
was a Whig; most of his associates had been 
Whigs, and now he was connected by marriage 
with the great Whig family of Livingstons, which 
had for generations contested the province with the 
Tory De Lanceys. 

Notwithstanding his youth, this traditional 
Whig became one of the most active and influ- 
ential spirits of the early Revolutionary period. In 
1774, shortly after his marriage, he was sent as a 
delegate to the First Continental Congress, a dis- 
tinction which must have been looked upon by the 



OFJOHNJAY 13 

new Mrs. Jay with considerable pride. That Con- 
gress assembled in Philadelphia, and there Jay 
found himself, with the single exception of Edward 
Rutledge, the youngest member of that august 
body. He possessed none of the headlong impet- 
uosity or fiery zeal of Rutledge, hov/ever, or of 
Henry, or of Adams, and prudently abstained from 
any vain attempt to compete with these notorious 
orators; but it was John Jay who was the author 
of the "Address to the People of Great Britain," 
and he at once won world-wide renown by it, — a 
paper which drev/ forth encomium^s even from the 
Earl of Chatham by its able and dignified state- 
ment of the rights of the colonists, and the glowing 
portrayal of the wrongs which they endured. 

Most of the delegates of the First Continental 
Congress were conservative and loyal subjects to 
the British Crown, and Jay was the leader of this 
conservative element. Indeed, so conservative was 
he, that some thought to class him among the 
Tories. His position was that the safest and most 
dignified position for the Congress to take, would 
be that of a convention called to petition His Maj- 
esty the King for a redress of grievances. He ad- 
vised deliberation and caution. " If we can get 
what we want, — our rights as British subjects, — let 
us remain true to the home-land across the sea," 
he said in one of his speeches, " and it is worth 
while to petition and try before radical measures 
are resorted to." And Jay's course was pursued. 
Otherwise, the " facts submitted to a candid world," 
as in the Declaration of Independence, sent forth 
two years later, could not have been followed by 
this sympathy-inspiring announcement : — 



14 EARTHLYPILGRIMAGE 

" In every stage of these oppressions we have 
petitioned for redress in the most humble terms: 
our repeated petitions have been answered by re- 
peated injury. A prince whose character is thus 
marked by every act that may define a tyrant, is 
unfit to be the ruler of a free people." 

Of Jay, then, as of every man in that day like 
him, it may be said, though in a different sense 
from that of the old Roman, that " by delay he 
created a nation," for at the time of the First Con- 
tinental Congress, the colonies were, as yet, united 
neither in sentim.ent nor interests, and the parties, 
Whigs and Tories, Liberals and Conservatives, 
v/ere, in the aggregate of wealth and influence, 
nearly evenly divided. By promoting petition after 
petition to the king, sometimes in terms of almost 
undignified conciliation, and with no effect, as in 
the Declaration of Independence set forth, a unity 
of sentiment was established, and a common cause 
made, in which all — worth mentioning — pledged 
their lives, their fortunes, and their sacred honors. 

Jay knew that in union alone there is strength, 
and foresaw that with the colonists divided in sen- 
timent and without common cause, a war for inde- 
pendence would be a miserable failure, with con- 
ditions worse than ever for their pains. 

Jay also served as a member of the Committee 
of Correspondence, and is said to have v/ritten the 
reply to the Boston Address, in which the project 
of nonintercourse was opposed. He also wrote 
the Address to the People of Canada, and one to 
the Inhabitants of Ireland. He continued in Con- 
gress until May, 1776, when he was recalled to 
assist in framing a government for New York, 



OF JOHN JAY IS 

and thus narrowly missed the earthly immortality 
which glorifies the names of the signers of the 
Declaration of Independence, — a fev/ years since 
proved to be, as one of our modern generals 
ascribed it, " a damned incendiary document " in 
the hands of the Filipinos. 

But then the Filipinos never petitioned for re- 
dress of grievances, as our colonial fathers did. In- 
deed, they had no grievances to redress, had they 
only known it, but misinformed, they were right 
there, and ready to fight, just as so many erratics 
in the First Continental Congress were, only in 
the case of the Filipinos, there was no John Jay 
to counsel moderation, and no Dickinson to second 
the motion. 




N Jay's return to New York, he drafted a 
Bill of Rights, and took a leading part in 
framing the Provincial Constitution; in 
fact, he is said to be the author of it, a 
document in many respects the same as the con- 
stitution of New York State to-day. 

One of these respects is worthy of notice. It 
pertains to religious liberty. Read on : " The free 
toleration of religious profession and worship 
without diminution or preference shall forever be 
allowed v/ithin the State to all mankind." This 
priceless heirloom of freedom of conscience was be- 
queathed to New York by New Netherlands, which, 
almost alone among the colonies, had never listened 
to the denunciations of fanaticism or lighted the 
fires of persecution. 



16 EARTHLYPILGRIMAGE 

In Jay, the author of it, the old Huguenot blood 
still run hotly with traditional memories of his 
great-grandfather, Pierre Jay, driven from La Ro- 
chelle; of his other great-grandfathers' families, 
the Bayards and Phillipses, seeking refuge in Hol- 
land and Bohemia from the strong arm of the 
Papacy, and he defended the proviso with all the 
zeal of an Ezra and the eloquence of a Nehemiah. 
For the power of the Church of Rome he knew 
and feared, and accordingly urged a further amend- 
ment, to " except Roman Catholics until they should 
abjure the authority of the Pope to absolve citizens 
from their allegiance, and to grant absolution." 

It is needless to say that a fierce debate fol- 
lowed this proposition, for there were Catholics 
present, and they could point v/ith some degree 
of scorn to the persecutions by the Church of Eng- 
land, of which Jay was a member; to how it had 
driven the Pilgrims hither, and how even the pious 
Pilgrims had been guilty of persecuting dissenters. 
The result was the adoption of a proviso, that the 
" liberty of conscience hereby granted shall not be 
so construed as to excuse licentiousness or justify 
practises v/hich are inconsistent vvith the safety of 
the State." 

But Jay was not satisfied with this, and when 
the question of naturalization cam.e up, he renewed 
his fight, and secured the adoption of an amend- 
ment, sufricient for public safety, but less " stren- 
uous," perhaps, than he desired; that before nat- 
uralization all persons shall " abjure and renounce 
all allegiance to all and every foreign king, prince, 
potentate, and State, in all matters ecclesiastical 
as well as civil." 



OFJOHNJAY 17 

This wording, perhaps, shows Jay's motives in 
the controversy, that it was not a religious but a 
political question; that it was not Romanism as a 
religion that he feared, but Romish imperialism in 
the affairs of state. For John Jay was not a bigot. 
So great was his sense of the diversity of opinion, 
both religious and political, that when it was moved 
to open the sessions of the First Continental Con- 
gress with prayer, he objected, though as devout a 
man as any present, " because," as John Adams has 
written, "we were so divided in religious senti- 
ments." And, when the New York Provincial 
Congress, in later years, forwarded to him and his 
colleagues a "plan of conciliation," protesting, 
among other things, " against the indulgence and 
establishment of Popery (by the Quebec Act) all 
along their interior confines," Jay's answer was that 
they "thought best to make no reference to the 
religious article, prefering to bury all disputes on 
ecclesiastical points, which have for ages had no 
other tendencies than that of banishing peace and 
charity from the world." 

In spite of Jay's caution, however, the First 
Continental Congress was opened with prayer. A 
chaplain was found whose prayers (though he 
afterward joined the Royalists, and v/as banished 
by Jay's Council of Safety) excited no dissension 
at the time* 

As chairman of the Council of Safety, this 
worthy — or unworthy — chaplain was not the only 
man Jay countenanced should be sent abroad for 
colonial protection. Some of them were his very 
friends. Men who as Royalists continued, after 
the outbreak of the war, to advocate the same doc- 



18 EARTHLYPILGRIMAGE 

trines of conciliation as Jay himself had cham- 
pioned in the Continental Congress, v/ere banished 
or imprisoned as traitors. Here Jay justified his 
conduct — clever politician that he was — by point- 
ing out that things said in times of peace might 
have a different aspect when reuttered in time of 
war. " It is different than when we v^ere all Brit- 
ish subjects. The United States have declared their 
independence, and we are fighting England to main- 
tain it. Should we tolerate her emissaries right 
here in our midst? Let those who favor the Brit- 
ish take refuge in Britain. To us they are traitors. 
It is a military measure," he said. 

But to return to the Provincial Constitution 
drafted by Jay for New York. Another item will 
bear special notice. It pertains to the qualification 
of voters. It v/as Jay's theory that all voters should 
be taxpayers ; that " the people who own the coun- 
try should run it." It is needless to say that the 
Constitution of York State does not recognize that 
feature in these piping times,— much to the chagrin, 
perhaps, of some streets in Jay's native city, the 
inhabitants of which would like to have it reasserted 
not only in the Constitution of New York, but of 
the United States as well. 



N September, 1776, John Jay was appointed 
Chief Justice of New York under the Con- 
stitution which he had championed. His 
court was merely the old provincial Su- 
preme Court continued. The minutes of Jay's first 
term appear in the same old book as had been in use 




OFJOHNJAY 19 

by the Crown. There are a few blank leaves between 
the Crown records and the minutes under Jay, but 
aside from this there is nothing to indicate a change 
of government, other than the title of a criminal 
case in which "The People of the State of New 
York " appeared as plaintiff, instead of " Domino 
Rex." Here is part of an address delivered by 
Jay to the Grand Jury of Ulster County, which was 
for years afterward considered among the classics 
of the Revolution. 

" It affords me, gentlemen," was the impressive 
opening, " very sensible pleasure to congratulate 
you on the dawn of that free, mild, and equal gov- 
ernment which now begins to break and rise from 
amid those clouds of anarchy, confusion, and licen- 
tiousness which the arbitrary and violent conduct 
of Great Britain has spread, in greater or less de- 
gree, throughout this and the other American 
States. . . . Vice, ignorance, and want of vigilance 
will be the only enemies able to destroy it. Against 
these be forever jealous." And then follows this 
piece of wise philosophy : — 

" Delay in punishing crime encourages the com- 
mission of crime. The more certain and speedy 
the punishment, the fewer will be the objects. . . . 
* The law's delays * cloak as many sins in society 
and politics as charity is said to do in religion." At 
another time, he says : — 

" To tax a faculty is to tolerate it, vice not being 
in its nature subject to taxation, except in the form 
of an indulgence to commit sin, and this State has 
no such indulgences for sale. By the principles of 
the Constitution, the vending of indulgences by 
ecclesiastical authority is uneffective * to excuse 



20 EARTHLY PILGRIMAGE 

licentiousness or justify practises inconsistent with 
the safety of the State/ while, on the other hand, 
a license by the State legalizes what it allows, and 
makes it no longer a wrong but a virtue in the eyes 
of the law. ... A wrong, therefore, which the Leg- 
islature has not seen fit to prohibit, is not a subject 
for human punishment, however much it may be 
to divine vengeance. No citizen is liable to be pun- 
ished by the State but such as have violated the 
laws of the State." 

Jay, in his address, was discussing an income- 
tax, and holding that " the public good requires 
that commerce and manufactures be encouraged," 
except when " taking advantage of the necessities 
of their country, they have, in prosecuting their 
private gain, amassed large sums of money to the 
great prejudice of the public," to avoid which, 
" laws should be passed which are absolutely pro- 
hibitory, rather than to subject them to penalties 
under the specious name of tax, and thus, in effect, 
grant them an indulgence." 

It would seem from this that there was some 
fear of ours becoming a trust-ridden country, even 
in those days, and with New York the seat of the 
evolution. 



OR several years the boundaries between 
New York, New Hampshire, and Massa- 
chusetts had been a source of controversy 
and confusion. The Declaration of Inde- 
pendence was utilized by Ethan Allen and others 
of the disputed territory as a good opportunity 
to declare their independence, and set up a new 




OFJOHNJAY 21 

province, which they began to call Vermont. Ac- 
cordingly, Vermont began to knock at the door of 
the Continental Congress for recognition as one 
of the " free and independent States " referred to 
in the general declaration of 1776. This finally 
induced the New York Legislature to resolve that 
there existed " a special case," in the sense of the 
Constitution, that would justify the appointment of 
Jay to Congress without vacating his seat on the 
bench. In December, 1778, he was accordingly re- 
turned to the scene of his old labors, with the spe- 
cial mission of urging Congress to settle the terri- 
torial claims. 

On arriving at Philadelphia, Jay found that his 
" special mission " was likely to keep him there for 
some considerable time, whereupon he resigned 
the Chief Justiceship, that the courts of his State 
"might not longer be kept inoperative." 

It soon happened, too, that Henry Laurens, 
president of Congress, resigned, and Jay was elected 
to take his place, notwithstanding that his " spe- 
cial mission" was to settle the question of Ver- 
mont. He finally moved, and carried, resolutions 
to submit the question to arbitration, thus recogniz- 
ing the new claimant explicitly, a position which 
he justified with characteristic common sense, as 
follows : — 

" In my opinion, it is much better for New York 
to gain a permanent peace with her neighbors by 
submitting to these inconveniences, than by im- 
politic adherence to strict rights, and the rigid ob- 
servance of the dictates of dignity and pride, to 
remain exposed to perpetual dissensions and en- 
croachments." 



22 EARTHLY PILGRIMAGE 

Thus we find John Jay an early advocate of 
arbitration, but Congress had no power to enforce 
an award of the arbitrators, and the dispute re- 
mained open until after the adoption of the Federal 
Constitution, when it was settled for all time by 
the transfer of $30,000 from the treasury of Ver- 
mont to the treasury of New York, — a finale which 
Jay considered an " ignominious outrage," and it 
was, against the people of Vermont. 




[j S president of Congress, Jay proved him- 
self an able parliamentarian, and a man 
of executive force, winning at once the 
admiration and respect of all the Congress- 
men. Indeed, their respect for him seems to have 
rather exceeded his respect for them, for some thirty 
years afterward, when Gouverneur Morris visited 
Jay at Bedford, he one day ejaculated, through 
clouds of smoke, " Jay, what a set of damned 
scoundrels we had in that second Congress ! " And 
Jay answered, " Yes, that we had." And then, 
knocking the ashes from his pipe, he added, " There 
was as much intrigue in that State House as in 
the Vatican, and as little secrecy as in a boarding 

school ," but there Morris intervened, " My 

pipe has gone out, can you give me a light? " 

It was while Jay was president of Congress 
that such grave anxiety arose over the condition 
of the currency. " Our money," wrote Robert R. 
Livingston to Jay, "is so much depreciated as 
hardly to be current, and, as a necessary conse- 
quence of this, our expenses have increased beyond 



OFJOHNJAY 23 

conception. According to a calculation I have 
made, it costs as much to maintain an army for two 
months now as it did to mxaintain it for the whole 
year of 1776. It is absolutely necessary that we 
should get out of this war soon." And, accord- 
ingly, it becam.e one of Jay's first duties to write a 
letter to the States explaining the action of Con- 
gress in limiting the issue of paper money, and 
calling on them for funds to meet current expenses. 
If this letter hardly showed a thorough knowledge 
of the principles of finance, it must not be forgotten 
that the country in those days was not as well 
blessed with Gages and Goulds, Shermans and 
Rockefellers, Shaws and Morgans, Bryans and 
Clevelands, as in more miodern years. Jay was as 
well supplied with such knowledge as any states- 
man of those times, and the letter at least answered 
the purpose of the moment. It stated simply the 
causes of depreciation, which in this case was held 
to be purely " artificial," or due to a lack of confi- 
dence in the government, and not " natural," due 
to excessive issue. Then the letter aimed to restore 
public confidence by affirming the honest intentions 
of Congress to fulfill their engagements, and prov- 
ing their ability to do so by reference to the enor- 
mous undeveloped wealth which the States already 
possessed, and the indefinite increase of population 
that would come from immigration as soon as the 
war was won. 

This optimistic note to the States served a 
goodly purpose, restoring confidence in the gov- 
ernment to a considerable degree, and it also proved 
the fallacy, to a like degree, of Jay's financial con- 
tention. But " a bankrupt in need of money can 



24 EARTHLY PILGRIMAGE 

not afford to be logical," and an appeal to an op- 
timistic patriotism was then the only resource. It 
did not cause the currency to appreciate, nor even 
stop its further depreciation, for it is now easy to 
see how the amount of paper then issued was far 
in excess of what could be maintained at par in the 
ordinary course of business, yet it brought some 
assistance from the States, and that was the main 
purpose for which the letters were sent. 

On October i, 1779, owing to the same finan- 
cial difficulty. Jay resigned his seat in Congress, 
which was in the president's chair, and sixteen days 
later set sail for Spain to negotiate a loan of two 
millions of dollars with which to carry on the 
war, and to negotiate a treaty reserving to the 
United States the freedom of the Mississippi. 



AY'S experiences with and treatment by the 
haughty and arrogant Court of Charles 
III of Spain will hardly stand recital. To 
recount them would simply be to add so 
much to the already heroic fame of Admirals Dewey 
and Schley for wiping the Spanish navy off the face 
of the earth — or sea. It would simply be to add 
so much to our already enormous pride in having 
been the main force in banishing Spanish power 
from the Western hemisphere. " * Vengeance is 
mine, saith the Lord, I will repay,' " Jay recited 
to himself, when he found himself worsted, and 
had learned the whys and wherefores; and if it was 
possible for his illustrious spirit to return to earthly 
scenes, and view the progress of the Spanish-Amer- 



OFJOHNJAY 25 

ican War, it must have been gratifying to him that 
Providence was employing the nation he had helped 
to found, in keeping that threatening promise, and 
to such a glorious end. 

At Madrid, Jay received no official recognition, 
and for nearly three years wrestled with the Span- 
ish Court in his diplomatic way, but to no effect, 
save to the extent of $150,000, which he confessed 
to getting by "acting with exquisite duplicity — a 
conduct which " he detested " as immoral, and " 
disproved " as im.politic." But the country at that 
time v/as in need of money, and Jay was " thank- 
ful for small favors," he said. 

It must have been a happy day for him when, 
in April, 1782, he received this message from Ben- 
jamin Franklin, the United States Minister in 
France : — 

" You are greatly wanted. Messengers begin to 
come and go, and there is much talk of a treaty 
being proposed; but I can neither make nor agree 
to propositions of peace without the assistance of 
my colleagues. . . . You would be of infinite serv- 
ice pending the arrival of the other commissioners." 

Without delay. Jay shook from his feet the un- 
friendly dust of Madrid, and started for Paris. 



OHN JAY'S skill in negotiating the treaty 
of peace with Great Britain is universally 
recognized, Henry Cabot Lodge and Dr. 
Edward Everett Hale to the contrary not- 
withstanding. Assisted by John Adams, even 
Franklin was finally induced to concur with him in 




26 EARTHLYPILGRIMAGE 

disregarding the instructions of Congress to act 
in concert with our ally, the King of France, be- 
cause he believed Vergennes, the French Minister, 
was playing a double part, injurious to the inter- 
ests of the people of the United States. 

During Jay's ministry to Spain, and after his 
arrival in Paris, things had transpired which to 
his mind appeared that France was to some extent 
responsible for the treatment he had received in 
Madrid, and his inability to negotiate a treaty, or 
the desired loan. He had come to the conclusion 
that France, while pretending to be our friend, and 
indeed assisting us with men and money, had no 
desire to assist in effecting American independence, 
but only to aid the colonies in prolonging a war 
with Great Britain which she (France) could use 
for her own selfish ends. Spain had a similar end 
in view. Jay divined, and France encouraged her in 
it, and indeed it was learned later that a secret 
treaty had been entered into between those coun- 
tries under which their respective interests were 
to be guarded by each. 

When the British commissioner arrived at Paris 
(Oswald was his name). Jay, lawyer-like, observed 
that he had come empowered " to treat and con- 
clude peace with the commissioners of the said 
colonies or plantations," etc., rather than with the 
commissioners of the United States of America, 
and Jay, therefore, refused to grant him official 
recognition. " These ancient colonies and planta- 
tions," he remarked rather laconically, " have de- 
clared their independence and maintained it for 
years, even against their mother country, as the 
United States of America. We can treat for peace 



OF JOHN JAY 27 

with no one whose commission does not recognize 
the independence of our country.'* 

We quote in part from Mr. Oswald's journal : — 
** Jay is a man of good sense, of frank, easy, and 
polite manners. He read over the copy of the 
commission, . . . and then said: By the quota- 
tion from the Act of Parliament, he supposed it 
meant that independence was to be treated upon, 
and was to be granted, perhaps, as a price of peace. 
To this he objected, that it ought to be no part of 
the treaty; that independence should have been 
expressly granted by the Act, and an order for all 
troops to be withdrawn should be issued, previous 
to any proposal for a treaty. As this was not done, 
the king, he said, ought to do it by proclamation. 
... He spoke with such freedom of expression 
and disapprobation of our conduct at home and 
abroad respecting America," concluded Oswald, 
" as shows we have little to expect from him in 
the way of indulgence. ... And I may venture to 
say that, although he has lived until now as an 
English subject, though he has never been in Eng- 
land, he may be supposed (by anything I could 
conceive) as much alienated from any particular 
regard for England as if he had never heard of it 
in his life." 

Then, after mentioning "many things of a 
retrospective kind," Jay added that " the great point 
was to make a peace that would be lasting." 
"What security," Oswald asked, "could be given 
for a continuance of peace save a treaty, which, 
like the Treaty of Paris, was likely to prove very 
inadequate security." Jay replied, " I would not 
give a farthing for any parchment security what- 



28 EARTHLY PILGRIMAGE 

ever. They have never signified anything since 
the world began, when any prince or state on 
either side found it convenient to break through 
them. But the peace I mean is such, or so to be 
settled, that it will not be to the interest of either 
party to violate it." 

"As to France," Oswald writes elsewhere, " he 
(Jay) said the Americans could make no treaty 
but in concurrence with the English settlement 
with France; that the independence of America 
was not a sufficient indemnity to France, and if 
granted as such, would put them under a greater 
obligation to France than they inclined to, as if to 
her alone they were indebted for their independence. 
The treaty of alliance with France must be ful- 
filled, he said, for they were a young Republic just 
come into the world, and if they were to forfeit 
their character at the outset, they would never be 
trusted again, and should become a proverb among 
mankind." 

" Upon my saying," wrote Oswald, " how hard 
it was that France should pretend to saddle us 
with her private engagement with Spain, he (Jay) 
replied : * We will allow no such thing. For we 
shall say to France: The agreement we have made 
with you we shall faithfully perform; but if you 
have entered into any separate measures with other 
people not included in that agreement, and will 
load the negotiations with their demands, we shall 
give ourselves no concern about them.' " 

Jay and Franklin consulted, by appointment, 
with de Vergennes, to whom Franklin had sent a 
copy of the commission. De Vergennes advised 
them to " proceed under it, as soon as the original 



OFJOHNJAY 29 

should arrive." Jay observed that " it would be 
descending from the ground of independence to 
treat under the description of colonies," by which 
phrase the States were described in the commis- 
sion. De Vergennes replied that " an acknowledg- 
ment of independence, instead of preceding, must, 
in the natural course of things, be the effect of the 
treaty, and that it would not be reasonable to ex- 
pect the effect before the cause." On the whole, 
the French court considered that " the American 
ministers should accept the commission on condi- 
tion that England would accept their own commis- 
sions as made by Congress." 

Jay's theory of de Vergennes' motives he ex- 
plained fully to Franklin. He thought that the 
French minister wished to postpone the acknowl- 
edgment until the objects of Spain had been se- 
cured, " because," he said in a letter to R. R. Liv- 
ingston, " if we once found ourselves standing on 
our own legs, our independence acknowledged, and 
all our other terms ready to be granted, we might 
not think it our duty to continue in the war for 
the attainment of Spanish objects. I could not 
otherwise account for the minister's advising us 
to act in a manner inconsistent with our dignity, 
and for reasons which he himself had too much 
understanding not to see the fallacy of. The Doc- 
tor imputed this conduct to the moderation of the 
minister, and to his desire of removing every ob- 
stacle to speedy negotiation for peace. He observed 
that this Court had hitherto treated us very fairly, 
and that suspicions to their disadvantage should not 
be readily entertained. ... He also mentioned our 
instructions as further reasons for our acquiescence 
in the advice and opinions of the minister." 



30 EARTHLYPILGRIMAGE 

Jay, indeed, had divined, v/ith an accuracy hard 
to surpass, the fears of the Court of Spain, which, 
by the treaty of Aranjuez, Vergennes was com- 
pelled to regard. 

" Would you break your instructions? " Frank- 
lin asked of Jay one day. " Yes," replied Jay, tak- 
ing his pipe from his mouth, " as I break this pipe, 
v/hich the doctors say is injurious, same as the in- 
structions of Congress," and so saying, he threw 
the fragments into the fire. 

Franklin, hov/ever, was unconvinced by Jay's 
reasoning, for en one Sunday morning he told Os- 
wald that " * Mr. Jay was a lawyer, and might pos- 
sibly think of things that did not occur to those 
who were not lawyers.' And he at last spoke as 
though he did not see much difference; but still 
used such a mode of expression that he (Oswald) 
could not positively say that he would not insist 
on Mr. Jay's proposition, or some previous or sep- 
arate acknowledgment." 

Jay also prepared a letter explaining the atti- 
tude of the commissioners. " If Parliament meant 
to enable the king to conclude a peace with us on 
terms of independence, they necessarily meant to 
enable him to do it in a manner compatible with 
his dignity, and consequently that he should pre- 
viously regard us in a point of view that would 
render it proper for him to negotiate with us. As 
to referring an acknowledgment of our independ- 
ence to the first article of a treaty, permit us to 
remark that this implies that we are not to be con- 
sidered in that light until after the conclusion of 
the treaty, and our acquiescing would be to admit 
the propriety of our being considered in another 



OFJOHNJA\ 31 

light during that interval. It is to be wished that 
His Majesty will not permit an obstacle so very 
unimportant to Great Britain, but so essential and 
indispensable v/ith respect to us, to delay the re- 
establishm.ent of peace." 

This letter v/as considered too positive by 
Franklin, who, moreover, as Jay wrote to Living- 
ston, " seemed to be much perplexed and fettered 
by our instructions to be guided by the advice of 
this court. Neither of these considerations had 
weight with me ; for as to the first, I could not con- 
ceive of any event which would render it proper, 
and therefore possible, for America to treat in any 
other character than as an independent nation; and 
as to the second, I could not believe that Congress 
intended v/e should follow any advice v/hich might 
be repugnant to their dignity and interest." 

Meanwhile, John Adams was hurrying to Paris 
at Jay's summons, and arriving, took a firm posi- 
tion in support of this policy. To Adam.s is due a 
portion of the credit of v/inning Franklin to tak- 
ing the same stand. " I told him without reserve," 
wrote Adams, " my opinion of the policy of this 
court, and of the principle, wisdom, and firmness 
with which Mr. Jay had conducted the negotiations 
in his sickness and my absence, and that I was 
determined to support Mr. Jay to the utmost of 
my powers in the pursuit of the same policy. The 
Doctor heard me patiently, but said nothing. At 
the first conference we had after v/ards with Mr. 
Oswald, in considering one point and another, Br. 
Franklin turned to Mr. Jay and said, * I am of 
your opinion, and will go on with these gentle- 
men in this business without consulting France or 
any other Court.' " 



32 EARTHLY PILGRIMAGE 

This accomplished, and the British commis- 
sioner having shown that he had side authority to 
recognize the " independence of the colonies " in 
a preliminary article, if absolutely necessary, a 
draft of such a recognition was drawn by Mr. Jay, 
which, agreed to by all the parties, progress in 
the direction of a treaty of peace was decidedly 
rapid. To persons not versed in public affairs, the 
wording of a commission may seem of minor im- 
portance, but whether Oswald was to treat with 
the colonies as such, or with the United States, 
was of considerable difference in this instance, for 
in the one case, independence still remained as 
something to be bargained for, and the States were 
technically colonies of Great Britain until the treaty 
was signed, in which case they would be precluded 
from making certain claims which as independent 
States would be their privilege and their right. 

The " United States " treating with Great Brit- 
ain was on an entirely different basis than the 
" colonies " would have been. The two powers 
were on an equal footing. The only question was 
how to make a permanent peace between them. 
" The colonial claims," wrote Adams in later years, 
"well founded or not, became important when 
pressed by an independent country, and instead of 
a treaty of more or less grudging concession from 
a superior power to its revolting colonists, the 
treaty became one of territorial partition between 
equals seeking a permanent basis of conciliation. 
Indeed, the preliminary grant of independence may 
be said to have carried with it a grant of the fish- 
eries and of the western territory, which as col- 
onies we would have had no right to claim." And 
the credit is due to John Jay. 



OFJOHNJAY 33 

The terms of that treaty are v/ell known. The 
United States gained more than Congress had ven- 
tured to propose, or even hope for. The French 
Minister, de Vergennes, was dumbfounded. Eng- 
gland explained herself by saying she did not con- 
sider the colonies or their claim.s worth bickering 
with. "We hope she has since discovered her mis- 
take, for she gave up some very, very valuable ter- 
ritory, — let the fisheries be hanged. 

" I will return home to become and remain a 
private citizen and a lawyer," Jay wrote to a friend, 
and on May i6, 1784, he left Paris v/ith his family, 
and took ship for New York. 




N returning to New York, after an absence 
of some five years. Jay was welcom.ed by 
the city fathers with an address, and the 
freedom of the city in a gold box, " as a 
pledge of their affection and sincere wishes for 
his happiness." But instead of becoming "a sim- 
ple citizen," as he had determined, with nothing 
else to do but to " practise in the legal profession," 
he found that Congress had two months before ap- 
pointed him Secretary for Foreign Affairs. 

Jay was reluctant to accept this position with- 
out the privilege of appointing his own clerks, a 
power which Congress had theretofore reserved 
to itself. But when Congress convened, the matter 
of appointing his subordinates was yielded, and the 
Secretaryship was assumed by Mr. Jay in due 
course. 

Up to this tim.e the Secretary of Foreign Affairs 
had served for but little more than a mere clerk of 



34 EARTHLYPILGRIMAGE 

Congress, but with the Treaty of Peace accom- 
plished, and independence won, it in a short time 
became the first office in importance under the Con- 
federacy, for through it was conducted all the cor- 
respondence between the Federal Government and 
the several States, as well as with foreign nations. 
In this capacity. Jay served until the adoption of 
the Federal Constitution and the seating of the first 
President, when, as before stated, Washington of- 
fered him his choice of the Federal offices, and he 
chose the Chief Justiceship. 

The part played by John Jay in bringing about 
the adoption of the Federal Constitution was as 
important as any achievement of his career. 

According to Pellew, " the national life was not 
secured by the Treaty of Peace, which only gave 
an opportunity for it; and the time between 1783 
and the adoption of the Constitution of 1788 was 
* the most critical period of the country's history.' 
The people were restless under the depression of 
trade and the depreciated currency; rioting threat- 
ened in many States, and in Massachusetts became 
rebellion." 

" I am uneasy and apprehensive," wrote Jay to 
Washington, " more so than during the war. Then 
we had a fixed object, and though the means and 
time of obtaining it were often problematical, yet 
I did firmly believe that we should ultimately suc- 
ceed, because I did firmly believe that justice was 
with us." The liberty so dearly won seem^ed about 
to be lost forever in the imminent anarchy. " If 
faction should long bear down law and govern- 
ment," were his gloomy words to Adams, " tyranny 
may raise its head, and the more sober part of the 
people may even think of a king." 



OFJOHNJAY 35 

The reasons for the failure of the Confederation 
were obvious, and Jay laid his finger on those that 
were fundamental : " To vest legislative, judicial, 
and executive powers in one and the same body 
of men, and that, too, in a body daily changing its 
members, can never be wise. In my opinion, those 
three great departments of sovereignty should be 
forever separated, and so distributed as to serve 
as checks on each other." This principle became 
the cornerstone of the Federal Constitution. Gov- 
ernment by committees was another chief cause 
of executive procrastination and inconsistency. 
" In my opinion," Jay wrote to M. Grand in Paris, 
" one superintendent or commissioner of the treas- 
ury is preferable to any greater number of them. 
Indeed, I would rather have each department under 
the direction of one able man than of twenty able 
ones ; " and m.odern publicists have reached the 
same conclusion. Finally, coercive pov/er in the 
Federal government was essential. " A mere gov- 
ernment of reason and persuasion," was Jay's un- 
willing testimony, " is little adapted to the actual 
state of human nature," as recorded in his letters 
to Thomas Jefferson. 

When a loan was proposed, necessary as money 
was. Jay was obliged to say : " Congress can make 
no certain dependence on the States for any specific 
sums, to be required and paid at any given periods, 
and consequently is not in a capacity safely to 
pledge its honor and faith as a borrower." This 
analysis of the weakness of the government he em- 
bodied in an Address to the People of the State: 
" They (the Congress) , may make war, but are not 
empowered to raise men or money to carry it on. 



36 EARTHLY PILGRIMAGE 

They may make peace, but without power to see 
the terms of it observed. They may form alHances, 
but without ability to comply with the stipulations 
on their part. They may enter into treaties of com- 
merce, but without power to enforce them at home 
or abroad. They may borrow money, but without 
having the means of payment. They may partly 
regulate commerce, but v/ithout authority to enforce 
their ordinances. They may appoint ministers and 
other officers of trust, but without power to try or 
punish them for misdemeanors. They may resolve, 
but can not execute, either with dispatch or with 
secrecy. In short, they may consult, and deliberate, 
and recommend, and make requisitions, and they 
who please may regard them." This was under the 
Confederacy. 

Jay's remedy lay in securing a more centralized 
form of government. " Father was in this sense a 
Federalist from the beginning," Jay's son William 
tells us. "A strong Federal union he considered the 
real aim and spirit of the Revolution. What was 
new was rather the doctrine of extreme State Rights 
of the so-called anti-Federalists." "It has, until 
lately, been a received and uncontradicted opinion," 
Jay stated in the " Federalist," " that the prosperity 
of the people of America depended on their con- 
tinuing firmly united; and the wishes, prayers, and 
efforts of our best citizens have been constantly 
directed to that object. But politicians may appear 
who insist that this opinion is erroneous, and that 
instead of looking for safety and happiness in union, 
we ought to seek it in the division of the States 
into distinct sovereignties. Hov/ever extraordinary 
this new doctrine may seem, it nevertheless has its 
advocates." 



OF JOHN JAY 37 

Even from France Jay had urged the necessity 
of centralization : " I am perfectly convinced that 
no time is to be lost in raising and maintaining a 
national spirit in America. Power to govern the 
Confederacy as to all general purpose should be 
granted and exercised." " I am convinced," he 
wrote to John Adams, ** that a national government 
as strong as may be compatible with liberty is 
necessary to give us national security or respect- 
ability." " It is my first wish," he wrote to John 
Lowell, " to see the United States assume and merit 
the character of one great nation, whose territory 
is divided into different States merely for more con- 
venient government and the more easy and prompt 
administration of justice, just as our severad States 
are divided into counties and townships for the like 
purposes." 

When, therefore, in 1787, the question was put, 
"What is to be done?" and an answer was de- 
manded. Jay could write to Washington with some 
definiteness : " To increase the power of Congress 
would be ineffectual, for the same reasons that 
always make a large committee a dilatory and in- 
consistent executive." He declared : " Let Con- 
gress legislate, let others execute, let others judge. 
Shall we have a king? Not, in my opinion, while 
other expedients remain untried. Might we not 
have a Governor-General, limited in his preroga- 
tives and duration? Might not Congress be divided 
into an upper and lower house, the former appointed 
for life, and the latter annually, and let the Gover- 
nor-General (to preserve the balance), with the 
advice of a council formed for that purpose, of the 
great judicial officers, have a negative on their 



38 :^ EARTHLY PILGRIMAGE 

acts? . . . What powers should be granted to the 
government, so constituted? ... I think the more, 
the better; the States retaining only so much as 
may be necessary for domestic purposes, and all 
their principal officers, civil and military, being 
commissioned and removable by the national gov- 
ernment." 

Jay was not a member of the Constitutional 
Convention, which was elected on recommendation 
of Congress. His appointment was urged by Alex- 
ander Hamilton, and v/as carried in the Assembly, 
but the Senate defeated the project on the ground 
of his " well-knov/n ultra-Federal ideas." As a re- 
sult. New York came near not being represented 
at all, two of the three delegates leaving the con- 
vention, because, as one of them, Lansing, declared, 
the Legislature v/ould never have sent them, had 
it supposed the powers of the Convention extended 
" to the formation of a national government, to 
the extinguishment of their independency." 

But Jay was not idle. With the co-operation 
of Hamilton and Madison, he at once started the 
" Federalist," which they ran serially for a time 
in the New York journals. Jay was the author of 
the second, third, fourth, fifth, and sixth numbers, 
and " no Constitution," according to Chancellor 
Kent, "ever received any more masterly and success- 
ful vindication." Section by section, it took up that 
instrument, and when the time for the ratification 
of the Constitution came, the people of New York 
knew about what it meant. They were made intel- 
ligent with what the regime under the new govern- 
ment would be, with Jay's and Madison's and Ham- 
ilton's central idea always in the foreground. " In- 



OFJOHNJAY 39 

dependent and probably discordant republics, one 
inclining to Britain, another to France, and a third 
to Spain, and perhaps played off against each other 
by the three, all would fall an easy prey to foreign 
invasion and encroachment ; " a sentiment quite 
similar to Lincoln's favorite doctrine, that " a house 
divided against itself can not stand ; " or, as John Jay 
once expressed it, " How soon would dearly bought 
experience proclaim, that when a nation or a fam- 
ily divides, it never fails to be against themselves." 
The ratification of the Constitution was therefore 
urged for protection against foreign invasion. 
" Union alone is not sufficient," was Jay's reluc- 
tant admission. "To union must be added strength." 
The treaty-making power, as vested in the Senate, 
was a great hobby of the "Federalist." "With 
separate States making separate and perhaps in- 
consistent treaties with foreign nations, will not 
disunion certainly tend to encourage war? And 
in cases of disputes between the States, who shall 
settle terms of peace? What umpire shall decide 
betv/een them, and who shall compel acquiescence? 
By a national union unreasonable causes of war are 
less likely to arise; just causes will seldom be in- 
curred, and it will secure the safety of the States, 
by placing them in a situation not to invite hos- 
tility." 

Jay also took it upon himself to write an anony- 
mous Address to the People of the State urging rati- 
fication. According to Pellev/, this " simply writ- 
ten, logical pamphlet had an almost astonishing 
effect in converting anti-Federalists to a knowledge 
and belief that the new Constitution was their only 
salvation." The author soon betrayed his well- 



40 EARTHLY PILGRIMAGE 

known style, however, and Franklin urged him to 
sign his name to it, " to give additional weight at 
this awful crisis," but Jay replied, that " if the rea- 
soning of the pamphlet is sound, it will have its 
effect on candid and discerning minds, and if weak 
and inconclusive, my name will not render it other- 
wise." " Our affairs are daily going from bad to 
worse," the address ran, " our distresses are ac- 
cumulating like compound interest. . . . Let it be 
admitted that this plan, like everything else devised 
by man, has its imperfections; that it does not 
please everybody is certain, and there is little rea- 
son to expect one that will. It is a question of 
grave moment to you, whether the probability of 
your being able to obtain a better is such as to ren- 
der it prudent and advisable to reject this, and run 
the risque. ... If this plan is rejected, and a new 
one fails or is long delayed, as it must be, all gov- 
ernment meantime coming to a stop, every band 
of union will be severed. Then every State would 
be a little nation, jealous of its neighbors, and anx- 
ious to strengthen itself by foreign alliances against 
its former friends. What in such an event would 
be your particular case?" 

Finally the convention for ratification was at 
hand, and after forty days of " an ordeal torture," 
to quote an eye-witness, "the task was accomplished 
by a majority of three votes," but not without a 
number of proposed amendments, nor until a suffi- 
cient number of other States had ratified to make 
the new government a reality. The laurels of the 
victory were borne by Hamilton, but the work of 
Jay was such that Washington wrote from Mount 
Vernon : " With peculiar pleasure I now congratu- 



OFJOHNJAY 41 

late you on the success of your labors to obtain an 
unconditional ratification." And John Adams, writ- 
ing to James Lloyd, said : " I f orebore to mention 
one of more importance than any of the rest, in- 
deed of almost as much weight as all the rest. It 
is Mr. Jay. That gentleman has had as much in- 
fluence in the preparatory measures, in digesting 
the Constitution, and obtaining its adoption, as 
any man in the nation." 




AY closed his duties as Secretary of For- 
eign Affairs under the Confederation by 
officially handing over the affairs of the 
government to George Washington, first 
President under the Constitution. The duties that 
were previously his were then assumed by Thomas 
Jefferson, Washington's choice for Secretary of 
State. But Jay continued to act as one of Wash- 
ington's confidential advisors, though in an unoffi- 
cial capacity, until the Federal Judiciary Act was 
passed, whereupon he was at once appointed Chief 
Justice. In this capacity he served until 1795, when 
he resigned to become Governor of New York. 

The causes brought before him as Chief Jus- 
tice were, perhaps, not of a character to fully test 
his professional ability, though Wharton, in his 
" State Trials," speaks of his " sound, wary, and 
experienced judgment," and we have it from 
Story's " Commentaries on the Constitution," that 
" he was equally distinguished as a revolutionary 
statesman and a jurist." With one exception, his 
decisions are preserved only in the brief and dry 



42 EARTHLYPILGRIMAGE 

minutes of the clerk. There was no such system of 
reporting then as now, and as to precedents there 
were practically none to follow. The Constitution 
was his authority, but it had never been judicially 
construed. The Court had to claim a dignity and 
win a respect inherited by the other courts, for this 
one v/as an entirely new creation. For every other 
provision of the Constitution there was some prece- 
dent either in the theory or practise of the English 
Constitution, or in the institutions of some colony 
or province; but the Supreme Court, at least in 
respect to its original jurisdiction, was an entirely 
unprecedented result of the requirements of the 
new system of government, with its complex co- 
relation of national and State sovereignties. Its 
position as interpreter and guardian of the Consti- 
tution, as the conserver of the republic, with equal 
and exact justice to all, depended upon the per- 
sonal respectability and wisdom of the members 
of the bench, for its supreme power was almost that 
of a monarch, to rule and overrule the Acts of Con- 
gress, and from it there lay no appeal except to 
the bar of humanity. Jay doubtless had this in 
mind when he chose the Chief Justiceship, for he 
believed in himself, and it was with exquisite care 
for the rights and privileges and the best interests 
of all that he managed to determine for all time 
these three important constitutional items: the 
dignity of the Court was vindicated from encroach- 
ment by the Federal executive and Legislative de- 
partments; its jurisdiction was established over 
the State governments; and incidentally. Jay an- 
nounced and determined that foreign policy of the 
United States which has been accepted and fol- 
lowed from that day to this. 



OF JOHN JAY 43 

Precedents were established on these three 
points in the following manner: In April, 1790, the 
Circuit Court for the District of New York, with 
Jay presiding, agreed unanimously to a protest 
against an Act of Congress providing that applica- 
tions for invalid pensions should be passed on by 
the judges of the Supreme Court in their respective 
circuits. The protest declared that Congress could 
not assign to the judiciary " any duties but such as 
are properly judicial, and to be performed in a ju- 
dicial manner; that the duties assigned to the Cir- 
cuit Courts by this act are not of that description, 
inasmuch as it subjects the decisions of these Courts, 
made pursuant to those duties, first to the consider- 
ation and suspension of the Secretary of War, and 
then to the revision of the Legislature; whereas, 
by the Constitution, neither the Secretary of War, 
nor any other executive officer, nor even the Legis- 
lature, is authorized to sit as a Court of Errors 
on the judicial acts or opinions of this Court." Ac- 
cordingly, when the question came before the court 
on a motion for m.andamus in Hayburn's case, be- 
fore a decision was given, the obnoxious act was 
repealed. Practically the Court had declared for 
the first time an Act of Congress unconstitutional. 

The question of the conflicting sovereignties 
of the States and the nation was gradually brought 
to an issue through several suits being brought by 
individual States against citizens of other States, 
but the great question of the suability of a State 
remained unargued till the case of Chisolm, exec- 
utor, vs. the State of Georgia, came to a hearing. 
The State refused to appear except to demur to 
the jurisdiction of the Court. The Chief Justice, 



44 EARTHLY PILGRIMAGE 

in his opinion, began by asserting that the States 
had never possessed an independent sovereignty. 
Before the Revolution " all the people of the coun- 
try were subjects to the King of Great Britain. 
They were in strict sense fellow subjects, and in a 
variety of respects one people," he said. In the 
establishment of the Constitution, " we see the peo- 
ple acting as sovereigns of the whole country; and, 
in the language of sovereignty, establishing a Con- 
stitution by which it was their will that the State 
governments should be bound, and to which the 
State governm.ent should be made to conform. The 
sovereignty of a nation is in the people of the na- 
tion, and the residuary sovereignty of each State is 
in the people of each State." As one State may sue 
another State, " suability and State sovereignty 
are not incompatible." Cases " in which a State 
shall be a party " are by the Constitution within 
the jurisdiction of the Supreme Court. " Did it 
mean here party-plaintiif ? If that only were meant, 
it would have been easy to find words to express 
it." The Court accordingly gave judgment against 
the State by default. The Legislature of Georgia 
passed acts condemning to death any one who 
should attempt to serve the process of execution. 
But judgment was never executed, for the next year 
an amendment to the Constitution was passed to 
counteract the effect of the decision. " Jay*s logic, 
however, remained uncontroverted. It established 
the Court as the supreme interpreter of the Consti- 
tution, and his words," according to Pellew, " were 
long cited as disproving the extreme theory of 
State Rights," and " to determine the political duty 
of the citizen, in a crisis like that of 1861." It laid 



OFJOHNJAY 45 

down the lines, indeed, that Marshall followed in 
his famous series of Federal decisions, culminating 
in McCulloch vs. Maryland : " The government 
proceeds directly from the people, is ordained and 
established in the name of the people." "After 
this clear and authoritative declaration of national 
supremacy," says Judge Cooley, " the power of a 
court to summon a State before it, at the suit of 
an individual, might be taken away by the amend- 
ment of the Constitution — as was in fact done — 
without impairing the general symmetry of the Fed- 
eral structure, or inflicting upon it any irremedi- 
able injury. The Union could scarcely have had a 
valuable existence had it been judicially determined 
that powers of sovereignty were exclusively in the 
States or in the people of the States severally. . . . 
The doctrine of an indissoluble Union, though not 
in terms declared, is nevertheless in its element at 
least contained in the decision. The qualified sov- 
ereignty, national and State, the subordination of 
State to nation, the position of a citizen as at once 
a necessary component part of the Federal and of 
the State system, are all exhibited. It must logic- 
ally follow that a nation, as a sovereignty, is pos- 
sessed of all those powers of independent action 
and self-protection, which the successors of Jay sub- 
sequently demonstrated were by implication con- 
ferred upon it." 

In the spring of 1793, before Chief Justice Jay 
and Judges Griffin and Iredell, at Richmond, Pat- 
rick Henry made his famous argument in the sec- 
ond trial of Ware's Executors vs. Hylton, on the 
question whether British creditors could recover 
against Virginia debtors by virtue of the Treaty 



46 EARTHLYPILGRIMAGE 

of Peace, in spite of an Act of Virginia to the con- 
trary. John Marshall, future Chief Justice, was 
Jay's colleague. At the final decision Jay was not 
present, though doubtless he would have concurred 
in the judgment of the Court in favor of the credit- 
ors, expanding from a statement of the contrac- 
tual liability of an individual, to an assertion that 
the treaty obligations of a nation were paramount 
to the laws of individual States. Happy conclusion ! 

At the outbreak of the French Revolution, sen- 
timent was divided as to what position the govern- 
ment should take on the subject of neutrality. The 
Federalists, under leadership of Washington and 
Hamilton, stood for " impartiality," fearing to use 
the word " neutral " because of its double meaning 
at the time. The anti-Federalists, or Republicans, 
under the leadership of Jefferson, were in favor of 
recognizing the belligerents and giving them aid. 

" The duty and interest of the United States," 
ran the President's proclamation, " require that they 
should, with sincerity and good faith, adopt and 
pursue a conduct friendly and impartial towards 
the belligerent powers. I have, therefore, thought 
fit ... to exhort and warn citizens of the United 
States carefully to avoid all acts and proceedings 
whatsoever, which may in any manner tend to con- 
travene such disposition," but Washington's proc- 
lamation would have been a dead letter, signifying 
nothing, unless its principles had been sustained 
by the courts. It fell to Jay to place it upon a 
legal basis, holding : " International has precedence 
both of Federal and of municipal law, unless in the 
exceptional case where Federal law has deliberately 
departed from it." In his charge to a grand jury 



OFJOHNJAY 47 

at Richmond, Virginia, May 22, 1793, the Chief 
Justice said : " You will recollect that the laws of 
nations make part of the laws of this, and of every 
civilized nation. They consist of those rules for 
regulating the conduct of nations towards each 
other, which, resulting from right reason, receive 
their obligations from that principle and from gen- 
eral assent and practise. To this head also belong 
those rules or laws which, by agreement, become 
established between nations. . . . We are now a 
nation, and it equally becomes us to perform our 
duties as to assert our rights ; " and he concluded 
accordingly that " the United States are in a state 
of neutrality relative to all the powers at war; . . . 
that, therefore, they who commit, aid, or abet hos- 
tilities against those powers, or either of them, of- 
fend against the laws of the United States, and 
ought to be punished." 

One Gideon Henfield, a citizen of the United 
States, who had served as officer on a French 
privateer which brought a British vessel as a prize 
into Philadelphia, was accordingly indicted, though 
no jury could be found to convict him. The im- 
portance of the charge, however, was made mani- 
fest, declaring as it did, in the face of popular preju- 
dice, " that violations of neutrality were criminally 
indictable at common law, and that the proclama- 
tion of the President was simply declaratory of law 
already in existence." " International law is part of 
the common law; by international law neutrality is 
presumed to exist till a tacit or public declaration 
of war ; and a neutral, except in so far as stipulated 
by treaty, must grant aid, neither by arms nor men 
to a belligerent," is quoted from Jay, in " Levi's 



48 EARTHLY PILGRIMAGE 

International Law," and by the Treaty with 
France, no such stipulation was expressed; where- 
fore, says Chancellor Kent, in opening his Com- 
mentaries, " in becoming a nation, the United States 
became amenable to that system of rules which 
reason, m.orality, and custom have established 
among the civilized nations of Europe as their pub- 
lic law." 

Jay's charge to the Richmond grand jury v/as 
printed by the government for distribution abroad, 
in order to explain the position of the Administra- 
tion, while the Democrats, with conscious or un- 
conscious misapprehension, demanded loudly, 
" What law has been offended, and under what 
was the indictment supported? . . . Were they to 
be punished for violating a proclamation which had 
not been published when the offense was commit- 
ted, if, indeed, it could be termed an offense to 
engage with France, combating for liberty against 
the com.bined despots of Europe?" Bow-wow! 

These are about all the judicial utterances of 
Chief Justice John Jay that are preserved in legal 
history as of any considerable importance. And, 
notwithstanding the fact that, unlike any of his 
successors, he was obliged to advance these opin- 
ions without the authority of precedent in Amer- 
ican law, they certainly speak well for his good 
sense and judicial wisdom. For, let it be remem- 
bered, that at first sittings of Jay's court there were 
not only no precedents for himself and his associates 
to follow, but there were no litigants to apply them 
to. At the first sitting, they were obliged to adjourn 
for a day for lack of a quorum. The next day, all 
present, a little routine work was done; seals for 



OF JOHN JAY 49 

the Supreme and Circuit Courts were designed 
and adopted, and some rules of practise promul- 
gated. It was further ordered that it should be 
requisite to the admission of attorneys and coun- 
sellors to practise in these courts, that they should 
have been such for three years past in the Supreme 
Court of the State from which they hailed, and that 
their private and professional character should ap- 
pear to be " fair." Upon this basis, a few of the 
brilliant legal lights of the time stepped forward 
and were admitted in accordance with the prescribed 
oath, to demean themselves as officers of the Court 
agreeably, and according to law, and that they 
should support the Constitution of the United 
States. It was also ordered that all process of the 
United States Courts should issue in the name of 
the President of the United States. Thereupon the 
Court adjourned to the first Monday in August fol- 
lowing, as fixed by law, not a single litigant having 
appeared at their bar. 

Judges there v/ere, but of business there was 
none. A clerk had been appointed, but was obliged 
to report : " No papers on file." Elias Boudinot, 
Egbert Benson, Fisher Ames, Robert Morris, and 
Edward Livingston had been admitted to practise; 
but silence was unbroken by their voices in argu- 
ment of their client's cases. The table was unbur- 
dened by the weight of learned briefs, and not a 
single decision, even in embryo, existed. 

No spectator of that hour, though gifted with 
eagle eyes of prophecy, could have foreseen that 
out of that assemblage, unheard and unthought of 
among the tribunals of earth, a court without a 
writ, a docket, or a record, of unknown and untried 



50 EARTHLYPILGRIMAGE 

powers, and undetermined jurisdiction, there would 
develop a court which, in a single century, would 
cause the tables of Congress to groan beneath pe- 
titions from the American Bar and various State 
Bar Associations, inviting that body to devise some 
means for the relief of that overburdened tribunal, 
whose litigants are now doomed to stand in line, 
sometimes for the space of two or three years, be- 
fore they have a chance to be heard ; a court whose 
decrees are like silver and golden threads inter- 
woven, of which the ancient world affords no model, 
and the m.odern world no parallel; binding in the 
bonds of constitutional jurisprudence, in the im- 
perishable trinity of love, liberty, and law, the 
safety and dignity and longevity of our free insti- 
tutions. 

Republic of Republics! Nation of Nations! 
Thy existence is secure only as the sentiments of 
this most blessed trinity remain incarnate in the 
hearts of thy people ; but " let it be remem^bered," 
as the first Chief Justice said, in his first charge to 
a Federal grand jury, " that civil liberty consists not 
in a right to every man to do just what he pleases ; 
but it consists in an equal right to all the citizens 
to have, enjoy, and do, in peace, security, and with- 
out molestation, whatever the equal and constitu- 
tional laws of the country admit to be consistent 
with the public good." 



OF JOHN JAY 51 




HILE Jay was still Chief Justice, he was 
nominated by the Federalists for Gover- 
nor of New York, but Tammany methods 
had already taken root in the New York 
Democracy, and he was defeated by Governor Clin- 
ton, through the instrumentality of fraudulent re- 
turns. Then the daily increasing " love frenzy for 
France," and the repeated violation of the Treaty 
of Peace, both by Great Britain and the States, 
nearly precipitated another war with England, for 
which we were even less prepared than at the out- 
break of the Revolution. In this crisis Washington 
decided to send to London a special envoy. Ham- 
ilton was his choice, but it was thought probable 
that his appointment would fail of confirmation in 
the Senate. Hamilton then proposed the name of 
Jay, and after three days of violent debate in the 
Senate, his appointment was finally confirm^ed. 

" You can not imagine," wrote Adams to his 
wife the day of the final vote, " what horrors some 
persons are in, lest peace should continue. The pros- 
pect of peace throws them into distress. . . . The 
opposition to Mr. Jay has been quickened by mo- 
tives which always influence everything in an elect- 
ive government. ... If Jay should succeed, it will 
recommend him to the choice of the people for 
President, as soon as a vacancy shall happen. This 
will weaken the hopes of the Southern States for 
Jefferson. This I believe to be the secret motive 
of the opposition to him, though other things were 
alleged as ostensible reasons, such as his monar- 
chial principles, his indifference about the naviga- 
tion of the Mississippi, his attachment to England, 
his aversion to France, none of which are well 



52 EARTHLYPILGRIMAGE 

founded, and his holding the office of Chief Jus- 
tice." 

The learned Dr. Carnahan, who became presi- 
dent of Princeton College in 1823, in his lectures 
on moral philosophy, used to quote a conversation 
between Jay and some friends at this time that was 
told him by an earwitness, as a striking instance 
of courageous patriotism : " Before the appointment 
was made, the subject was spoken of in the pres- 
ence of Jay, and Jay remarked that such were the 
prejudices of the American people, that no man 
could form a treaty with Great Britain, however 
advantageous it might be to the country, who would 
not by his agency render himself so unpopular and 
odious as to blast all hope of political preferment. 
It was suggested to Mr. Jay that he was the person 
to whom this odious office was likely to be offered. 
* Well,' replied Mr. Jay, * if Washington shall think 
fit to call me to perform this service, I will go and 
perform it to the best of my abilities, foreseeing as 
I do the consequences to my personal popularity. 
The good of my country I believe demands the 
sacrifice, and I am ready to make it.' " 

And though the treaty concluded between Jay 
and Grenville now appears, in the light of history, 
to have been a very fair one for both countries. 
Jay's predictions on the effect it would have upon 
his popularity at that time were not far astray, 
notwithstanding that on his return, after a year's 
absence, he found that he had, in spite of Tam- 
many methods, finally been elected Governor of 
his State, and he thereupon resigned his Chief Jus- 
ticeship. 

The complaints to be adjusted between the two 



OFJOHNJAY S3 

countries were numerous and complicated. Great 
Britain, on the one hand, had retained the Western 
military posts in violation of the Treaty of Peace, 
and had made no compensation for the negro slaves 
carried away by her officers; on the other hand, 
several of the States had prevented the collection 
of debts due English merchants contracted before 
the Revolution. The boundaries of the United 
States on the west and northeast were unsettled. 
Great Britain finally camplained of damage to her 
commerce by French privateers fitted out in Amer- 
ican ports; while the United States complained of 
similar damage through irregular captures by Brit- 
ish cruisers. And Jay gained for America about 
all she deserved, even according to Andrew Jack- 
son, who in later years remarked that " Jay's treaty 
was a masterpiece of diplomacy, considering the 
circumstances of this country," while some such 
thoughts must have been in Lord Sheffield's mind 
when, at the outbreak of the war of 1812, he re- 
marked : " We have now a complete opportunity of 
getting rid of that most impolitic treaty of 1794, 
when Lord Grenville was so perfectly duped by 
Jay." The treaty was ratified by the United States 
Senate, too, with the exception of an article about 
the West India trade, but its contents were not 
made public until after Jay's inauguration as Gov- 
ernor. Here is a sketch of the exciting scenes which 
followed. 

" Even before its contents were known," says 
Pellew, " letters signed * Franklin,' appeared abus- 
ing the treaty; and in Philadelphia an effigy of Jay 
was placed in the pillory, and finally taken down, 
guillotined, the clothes fired, and the body blown 



54 EARTHLY PILGRIMAGE 

up. It was clear, then, that it was not this partic- 
ular treaty, but any treaty at all with Great Britain, 
that excited the wrath of the Republicans. On July 
4 toasts insulting Jay, or making odious puns on 
his name, were the fashion. Two days after a copy 
of the treaty reached Boston, a m.ass meeting was 
called, though there had been no time to consider 
it, and condemnatory resolutions were passed. In 
New York similar action was had. Hamilton tried 
to make himself heard, but was stopped by a volley 
of stones, and the treaty and a picture of Jay 
were burned on the Bowery. One effigy repre- 
sented Jay holding a pair of scales, with the treaty 
on one side and a bag of gold on the other, while 
from his mouth proceeded this label, * Come up to 
my price, and I will sell you my country.* " 

James Savidge, once president of the Massa- 
chusetts Historical Society, told his grandson that 
he remembered seeing these words chalked in large 
white letters around the inclosure of Mr. Robert 
Treat Paine: — 

" Damn John Jay ! Damn every one that won't 
damn John Jay!! Damn every one that won't put 
lights in his windows and sit up all night damning 
John Jay!!!" 

Throughout the storm of vituperation Jay him- 
self remained calm and philosophical. "As to my 
negotiations and the treaty," he wrote to Judge 
Gushing, " I left this country well convinced that 
it would not receive anti-Federal approbation; be- 
sides, I had read the history of Greece, and was 
apprized of the politics and proceedings of more 
recent date. . . . Calumny is seldom durable; it will 
in time yield to truth." 



OF JOHN JAY 



55 



He had done his duty, though by so doing he 
undoubtedly lost the Presidency of the United 
States. 




F Jay's Governorship, there is but little to 
be said that could not be related of most 
any State Governor. He served the people 
honorably and well, and when his two 
terms were finished, the freeholders of the State, 
regardless of party, passed resolutions commend- 
ing his public service, and regretting his retire- 
ment. Here, however, are a few items that are 
worthy of mentioning. 

Governor Wolcott, of Connecticut, asked Jay 
to exercise the pardoning power vested in him, in 
behalf of a young man of good family, who had 
been convicted in the New York courts of forgery. 
Governor Jay replied : " Justice . . . can not look 
with more favorable eye on those who become 
criminals, in spite of a good education and of good 
examples, than of those other offenders who from 
infancy have lived destitute of those advantages." 
The Governor incurred odium by refusing to 
order the flags to be hoisted on Governor's Island 
and the Battery on the anniversary of the Tam- 
many Society. The reason given was, that " if such 
a compliment be paid to the Tammany, it ought 
not to be refused to any of the numerous societies 
in this city and State." 

Jay, himself, was a slaveholder, in a certain 
sense. " I have three male and three female 
slaves," he wrote in a return of his property to the 



S6 ISARTHLYPILGRIMAGE 

Albany assessors ; " five of them are with me in this 
city of New York. I purchase slaves and manu- 
mit them at proper ages, and when their faithful 
services shall have a reasonable retribution." Per- 
haps the Governor's practise in this respect may 
have suggested the practical manner of emancipa- 
tion, as enacted by the New York Legislature in 
1799. 

In the spring of 1800, Aaron Burr appeared in 
the political arena as a Republican leader, and made 
such inroads on Federalists that even Hamilton, 
disregarding the previous record of his party, wrote 
to Governor Jay urging him to call an extra session 
of the Legislature to pass measures for districting 
the State, as a means of thwarting Burr's plans. 
Philip Schuyler wrote to the same effect, saying 
that Marshall was of the same opinion. " Your 
friends will justify it," he continued, " as the only 
means to save a nation from more disasters, which 
it must and probably will experience from the mis- 
rule of a man who has given such strong evidence 
that he is opposed to the salutary measures of 
those who have been heretofore at the helm, and 
who is, in fact, pervaded with the mad French phi- 
losophy." 

Jay, though as stalwart a Federalist as any, 
nevertheless did not believe that a good end ever 
justified bad means; and he contented himself with 
simply endorsing on Hamilton's letters the signifi- 
cant words : " Proposing a measure for party pur- 
pose which I think it would not become me to 
adopt." 

At the close of Jay's second term, the Federal- 
ists, in a complimentary address, urged him to con- 



OPJOHNJAY 57 

sent to be renominated. " The period is now nearly 
arrived," was Jay*s answer, " at which for many 
years I have intended to retire from the cares of 
public life, and for which I have been for more than 
two years preparing. Not perceiving, after mature 
consideration, that my duties require me to post- 
pone it, I shall retire accordingly." " He was un- 
moved even by the complimentary letter of Presi- 
dent Adams, announcing his unsolicited nomination 
and confirmation, a second time, as Chief Justice 
of the United States," says Pellew. " I had no per- 
mission from you," said President Adam.s, " to take 
this step, but it appeared to me that Providence 
had thrown in my way an opportunity, not only 
of marking to the public the spot where, in my opin- ^ 
ion, the greatest mass of worth remained collected \ 
in one individual, but of furnishing my country with 
the best security its inhabitants afforded against its 
increasing dissolution of morals." " I left the 
bench," Jay replied, " perfectly convinced that 
under a system so defective it would not obtain the 
energy, weight, and dignity which was essential to 
its affording due support to the national govern- 
ment ; nor acquire the public confidence and respect 
which, as the last resort of the justice of the nation, 
it should possess. Hence I am induced to doubt 
both the propriety and the expediency of my return- 
ing to the bench under the present system. . . . 
Independently of these considerations, the state of 
my health removes every doubt." 




58 EARTHLY PILGRIMAGE 

OHN JAY, in returning from public to pri- 
vate life, resorted to the peace and quiet of 
the farm. Henceforth, it is John Jay, the 
farmer. Some say he was an artistocrat, 
but what of it? The same has been said of Wash- 
ington, of Hamilton, of Adams, and of Franklin, 
and all of them doubtless were, but it was the aris- 
tocracy of the brain, that springs from the democ- 
racy of the soul. Jefferson and Aaron Burr may 
have possessed more genius, but Jay and those 
classed with him showed more common sense, and 
that is the thing that counts in the founding of a 
nation. As one of the immortal ten, mentioned by 
a great English statesman, who gave " order, sta- 
bility, and direction to the cause of American in- 
dependence," the name of John Jay is secure. What 
France lost when Louis the Great, called by Car- 
lyle " Louis the Little," banished Huguenots, 
America gained, and we ought to be especially 
thankful. Tyranny and intolerance always drive 
from their homes the best ; those who have the abil- 
ity to think, the courage to act, a dignity to pre- 
serve, and a pride that can not be coerced. Such 
was the heritage of John Jay, and it served well in 
the cause of American independence, and in the 
founding of this great republic. 

The fact that he was wealthy for his time is no 
disgrace. It can hardly be said that he came by 
it dishonestly, for it was for the most part inherited, 
and there is no record that in settling the estates 
of Mr. and Mrs. Peter Jay, he bought any of his 
brothers off with a mess of pottage. His Bedford 
estate was quite as extended as that of any farmer 
in Westchester County, and he entered upon it 



OF JOHN JAY 59 

with the same zeal and energy as he had displayed 
in public life. He erected handsome buildings for 
the comfort of his family, and to shelter his live 
stock, and in which to store the products of his 
soil. It had been his ambition for years to be a suc- 
cessful farmer — an ambition which he doubtless 
added to through close acquaintance with George 
Washington and occasional visits to beautiful 
Mount Vernon. 

Of course, Jay did but little of the heavy work, 
he left that to his tenants and servants ; but he was 
his own overseer, his ov^rn agriculturist, his own 
horticulturist, his own stock buyer, and his own 
selling agent, deriving " more satisfaction," as he 
once wrote to Judge Peters, " from attending to 
vines and fruit trees than most conquerors do from 
cultivating their favorite laurels." 

And so, at the conclusion of his Governorship, 
he retired with his family to Bedford to enjoy the 
long-deserved society of the wife he loved, and to 
attend to the education of his children. But no 
sooner was this cup of happiness to his lips than it 
was dashed to the ground, for within a year death, 
that always unwelcome visitor, entered his home, 
and the spirit of the beautiful and loving Mrs. Sarah 
Livingston- Jay took its flight. 

Since their marriage they had been pained by 
repeated separations, made necessary by the hus- 
band's public duties, but their love for each other 
was ever great, so great, indeed, as to provoke the 
gentle raillery of their friends. Even the docile Ben- 
jamin Franklin used to joke with Mrs. Jay, and tried 
to arouse her jealousy, as the story runs in one of 
her letters, written while she was in Paris, and Jay 
was in England. 



60 EARTHLYPILGRIMAGE 

" Dr. Franklin charges me to present you his 
compliments," she says, " whenever I write to you, 
but forbids my telling you how much pains he takes 
to excite my jealousy at your stay. The other 
evening, at Passy, he produced several pieces of 
steel; 3ie one he supposed you at Chaillot, which 
being placed near another piece, which was to repre- 
sent me, it was attached by that, and presently 
united; but when drawn off from me, and near an- 
other piece, which the Doctor called an English 
lady, behold, the same effect! The company en- 
joyed it much, and urged me to revenge; but all 
could not shake my faith in my beloved friend." " It 
gives me pleasure," was Jay's reply from Bath, " to 
hear that the Doctor is in such good spirits. Though 
his magnets love society, they are nevertheless true 
to the pole, and in that I hope to resemble them." 

And he did — quite so. Never to the day of her 
death — or his — did Jay come to sink the lover in 
the husband. " Tell me," he once wrote to her, re- 
ferring to her eyes that he had not seen for months, 
" tell me, are they as bright as ever? " and her let- 
ters to him were what she was always fond of call- 
ing, " little messengers of love." 

What influence Sarah Livingston, as the wife of 
John Jay, had upon his private and public life, it 
is impossible to estimate, but it must have been im- 
mense. For with a good wife, man is still in the 
majority, even though the whole world be against 
him. The love, the confidence, and the hope of one 
good woman is worth more in the development of 
the individual than all the favors that kings and 
princes can bestow. And John Jay was just the 
kind of a man that deserves such love, that inspires 



OF JOHN JAY 61 

such confidence, and strews the pathway of such 
hopes with flowers. Deception being outside the 
category of his talents, it is to be believed that he 
returned all the love and confidence he received. 
As to his hopes that some day they would be settled 
together, as they now were for almost the first time 
in their life, in a home, her sudden death was a most 
severe shock, and it told plainly on his already shat- 
tered nerves. 

" The habit of reticence grew upon him," one 
writer tells us, " until he could not be tricked into 
giving an opinion even about the weather ; " but his 
daughters made his home ideal, and with love and 
gentleness soothed his declining years. 

He lived out his days as a partial recluse, though 
his home was ever open to old friends, and public 
men were frequent callers. Besides, he kept up a 
correspondence with Wilberforce, of England, and 
Lafayette, of France, which, together with the work 
of his farm, the problems of church, and the village 
politics, filled his latter days. 

These furnished healthful exercise for his tire- 
less brain, which refused to run down ; but the prob- 
lems of statecraft he left to other heads and hands. 

Time, then, was kindly, and sent Death, its 
Peace Envoy, as Autumn, the Ambassador of Win- 
ter, gathers the leaves. 



62 BARTHLYPILGRIMAGE 

THIS IS THE END OF "THE EARTHLY 
PILGRIMAGE OF JOHN JAY," AS RELATED 
BY JOHN HENRY ZUVER, WHO, HAVING 
ENJOYED NO PERSONAL ACQUAINTANCE 
WITH THAT ESTIMABLE GENTLEMAN, 
PLEADS GUILTY TO HAVING READ — 

Flander's " Lives of the Chief Justices," Car- 
son's " History of the Supreme Court," William 
Jay's " Letters of John Jay," Pellew's " Biog- 
raphy of John Jay," and letters and biographies 
of Washington, Adams, Franklin, Hamilton, 
Jefferson, and others too numerous to men- 
tion — 

AND USED THE KNOWLEDGE THUS AC- 
QUIRED, WITH ADDITIONS, SUBTRAC- 
TIONS, MULTIPLICATIONS, AND DIVI- 
SIONS, MADE BY HIS OWN HEAD AND 
HAND, TO FIT THE PAGES OF THIS TOME 
OF "EARTHLY PILGRIMAGES OF THE 
CHIEF JUSTICES OF THE UNITED STATES 
SUPREME COURT," PUBLISHED BY THE 
ASSOCIATED LAWYERS' PUBLISHING 
COMPANY, AND DONE INTO BOOK BY 
THE LEADLEAF PRESS AT THEIR SHOP, 
WHICH IS IN BATTLE CREEK, MICHIGAN, 
U. S. A. 



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